statutory cross references -- the 'loose cannon' of

Florida State University Law Review Florida State University Law Review

Volume 9 Issue 1 Article 1

Winter 1981

Statutory Cross References -- The "Loose Cannon" of Statutory Statutory Cross References -- The "Loose Cannon" of Statutory

Construction in Florida Construction in Florida

Ernest E. Means

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Recommended Citation Recommended Citation Ernest E. Means, Statutory Cross References -- The "Loose Cannon" of Statutory Construction in Florida, 9 Fla. St. U. L. Rev. 1 (1981) . https://ir.law.fsu.edu/lr/vol9/iss1/1

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FLORIDA STATE UNIVERSITY LAW REVIEW

VOLUME 9 WINTER 1981 NUMBER 1

STATUTORY CROSS REFERENCES-THE "LOOSE

CANNON" OF STATUTORY CONSTRUCTION IN FLORIDA

ERNEST E. MEANS*

I. INTRODUCTION

Considering the flood of legislation passed in recent years bystate legislatures and Congress,' it is becoming less and less likelythat the practitioner can ever afford to ignore statutory materialsin researching a legal problem. But once the Florida practitionerturns to the Florida Statutes, the likelihood is that he win encoun-ter, in the text of the law consulted, at least one specific referenceto some other provision of Florida law. Of the approximately16,000 sections making up the Florida Statutes, some 5,500 containsuch references. In all, there are about 13,000 specific references toother provisions of the Florida Statutes.2

Statutory cross referencing is by no means peculiar to Florida ormodern times. It appeared in legislation of the English Parliamentas early as the thirteenth century and was commonly utilized inthe early years of the Canadian provinces and the American colo-nies.8 At the present time, other states apparently rely on statutorycross references to about the same extent as Florida.

* Research Associate, Florida State University College of Law. B.A. 1948, Wittenberg

University; M.S. 1951, University of Wisconsin; Ph.D. 1958, University of Wisconsin; LL.B.1964, University of Florida. Director, Division of Statutory Revision and Indexing, JointLegislative Management Committee, Florida Legislature 1967-1977.

1. W. KmFmE & OGuL, THE AMERICAN LEGISLATIVE PROCESS: CONGRESS AND THE STATES

156 (4th ed. 1977).2. Fla. HB 2329 (1977). These estimates, contained in the "whereas clauses" of the cited

bill, were assembled by the Statutory Revision Division of the Joint Legislative Manage-ment Committee under the author's supervision. They were based on extensive electronicsearching of the 1975 edition of the Florida Statutes and also the direct "eyeballing" of thatedition by the division's staff.

3. Poldervaart, Legislation by Reference-A Statutory Jungle, 38 IowA L. REV. 705, 706(1953), citing to Statute of Westminster I1, c.11 (1285); Read, Is Referential LegislationWorth While? 25 MINN. L. REV. 261, 262 (1941).

4. In response to a questionnaire stating the extent of Florida usage of statutory crossreferencing, the revisers of statutes for Oregon and Texas reported that usage of the devicein their respective states was about the same as in Florida. The reviser for North Dakotareported that "there are approximately 8,012 specific statutory references contained in ap-proximately 6,740 sections out of approximately 21,127 sections contained in the North Da-

2 FLORIDA STATE UNIVERSITY LAW REVIEW

There is no intention of discussing extensively the advantagesand disadvantages of so-called reference statutes. In fact, it is im-possible to imagine published statute law without them. Theuniversality of the practice strongly suggests that their use is inevi-table. Two states-New York and New Jersey-went so far as toattempt to prohibit the practice by seemingly unambiguous consti-tutional provisions.5 In both states, the courts have refused to giveliteral effect to their respective constitutional provisions. Rather,they distinguish between references to substantive law and refer-ences to procedural provisions, and permit the latter in spite of theconstitutional prohibitions.'

This article accepts the widespread use of statutory cross refer-ences as a fact of life and leaves to others the question of whetherthe device is abused through overuse. The focus will be upon aparticularly troublesome problem that confronts the user of theFlorida Statutes when he encounters a specific cross reference toanother provision of Florida statutory law. Since the consequenceof a cross reference to a statutory provision is to incorporate thatprovision into the adopting statute, it follows that the meaning ofthe reference within the adopting statute can only be ascertainedby finding and analyzing the incorporated provision. Suppose,however, that the referenced provision has been amended one ormore times, with a corresponding number of different versions.Which version should be consulted? The one that was originallyenacted? The one that existed when the cross reference was en-acted? The one that exists at the time the law is being consulted?7

As this article shall demonstrate, the danger that the user of thestatutes will consult the wrong version of the referenced provi-

kota Century Code." Letter from Jay E. Buringrud to Ernest E. Means (May 7, 1980).5. N.J. CONsT. art. IV, § 7, 11 5 provides in part, "No act shall be passed which shall

provide that any existing law, or any part thereof, shall be made or deemed a part of the actor which shall enact that any existing law, or any part thereof, shall be applicable, except byinserting it in such act." N.Y. CONST. art. 3, § 16 is substantially identical to the New Jerseyprovision just quoted.

6. Port of N.Y. Auth. v. Heming, 167 A.2d 609 (N.J. 1961), appeal dismissed and cert.denied, 367 U.S. 487 (1961); Richfield Oil Corp. v. City of Syracuse, 39 N.E.2d 219, (N.Y.1942), reargument denied, 44 N.E.2d 624 (N.Y. 1942).

7. The problem of incorporation by reference assumes special dimensions with refer-ences to statutory materials because they are subject to amendment in a way that othermaterials are not. Wills, contracts, specifications, and the like may be amended, but they arenot subject to regular and systematic amendment as are statutes. Usually, only two or a fewparties are affected who have negotiated the amendments in the first place and are thereforefully aware of them. On the other hand, the Florida Legislature meets for at least 60 dayseach year and normally enacts some 400 general laws, most of which constitute amendmentsto existing statutory law.

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STATUTORY CROSS REFERENCES

sion-with potentially disastrous consequences-is a very real one.

II. THE COMMON LAW DocTRINEs

As long as the reference is to the law of the same lawmakingauthority it is a matter of legislative intent whether the incorpora-tion by reference includes subsequent changes to the referencedprovision.8 However, legislative bodies seldom express their inten-tion on this issue, so common law rules were developed to assist ininferring legislative intent.

From a very early time, it has been generally agreed that thelegal effect of a specific statutory cross reference is to incorporatethe language of the referenced statute into the adopting statute asthough set out verbatim, and that in the absence of express legisla-tive intent to the contrary, the legislature intends that the incorpo-ration by reference shall not be affected by a subsequent change tothe referenced law-even its repeal.' In other words, each refer-enced provision has two separate existences-as a substantive pro-vision and as an incorporation by reference-and neither is there-after affected by anything that happens to the other.

An early qualification to the general doctrine, often attributed tothe Florida case of Jones v. Dexter,10 became equally accepted.This was-again in the absence of express legislative intent to thecontrary-that when the reference is not to a specific statute, butto the law in general as it applies to a specified subject, the refer-ence takes the law as it exists at the time the law is applied.11

Thus, in the case of general references, the incorporation does in-clude subsequent changes to the referenced law.

In general, this is the common law formula that purports toguide the practitioner in his interpretation of the many statutorycross references that he will encounter in his research. As aformula, it seems basically clear and straightforward; incorpora-tions by specific reference are not affected by later changes to thereferenced law, but incorporations by general reference are so

8. Annot., 168 A.L.R. 627, 628 (1947); 73 AM. Jut. 2D Statutes § 29 (1974); 82 C.J.S.Statutes § 370 (1953).

9. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 625 (1838); Hecht v. Shaw, 151So. 333, 333 (Fla. 1933); Annot., 168 A.L.R. 627, 630 (1947); 73 A. JUR. 2d Statutes § 29(1974); 82 C.J.S. Statutes § 370 (1953).

10. 8 Fla. 276 (1859).11. Id. at 282-83; see also Poldervaart, supra note 3, at 724; Read, supra note 3, at 272;

Annot. 168 A.L.R. 627, 632 (1947); AM. Jim. 2d Statutes § 29 (1974); 82 C.J.S. Statutes §370 (1953).

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affected.This seems a reasonable formula for inferring legislative inten-

tions concerning later amendments to the referenced material.When the cross reference is specific, the enacting legislators areconsciously incorporating an existing statutory provision into thenew legislation. Considering the specificity of their intent, there islittle basis for assuming that they also intended to embrace theperhaps dangerous uncertainty of possible future amendments tothe referenced provision. But when the cross reference is in generalterms, it seems equally apparent that they have nothing very pre-cise in mind. True, it is intended that incorporation by referencewill take place from time to time as the adopting law is consulted.However, the degree of certainty that would warrant the exclusionfrom a reference of future amendments to the law governing thespecified subject matter is not present in general references.

Courts are prone to accept this formula at face value and to ap-ply it in a mechanistic manner without a reasoned analysis of thecross reference problem.12 When confronted with a need to con-strue a cross reference, an appellate court will usually be satisfiedto recite the opposing rules concerning specific and general refer-ences, state whether the reference in question is specific or general,and announce a result accordingly.

Notwithstanding the comfortable certainty of such well settleddoctrines, formidable problems await the users of statutes in deal-ing with statutory cross references. Even assuming the adequacy ofthe doctrines, there are traps for the unwary in applying them. Butthe doctrines are themselves flawed. There are circumstances inwhich the common law rule as to specific statutory cross referencessimply does not point to what is probably the most likely unex-pressed intention of the legislature. Moreover, an unwarranteddeviation from the common law rule as to general statutory crossreferences, peculiar to Florida, greatly adds to the confusion. Fol-lowing a brief discussion of these problems, a statutory solutionwill be proposed that should greatly alleviate them.18

III. THE PRACTITIONER'S PREDICAMENT

Even assuming the adequacy of the common law rules as guide-lines for finding legislative intent when it has not been expressed,

12. Read, supra note 3, at 273; SenteU, "Reference Statutes"-Borrow Now and PayLater?, 10 GA. L. REv. 153, 156 (1975).

13. See text infra, preceding note 102.

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the pitfalls awaiting the user of the Florida Statutes relative tostatutory cross references are considerable.

A. Lack of Awareness

Before discussing the various technical problems likely to be en-countered, it is appropriate to mention a threshold problem.Many-perhaps most-legal practitioners are apparently unawarethat there is any reason to exercise caution in interpreting suchreferences. In other words, when they encounter a specific refer-ence to another provision of the Florida Statutes, they confidentlyturn to the current version of the referenced provision to ascertainits content. As we shall see, this can be a dangerous practice.

There is little hard evidence of this lack of awareness, since thiskind of misguided procedure seldom results in an adjudication thatfinds its way into the appellate reports. Consequently, the author'sperception of this phase of the problem is based primarily uponsubjective impressions resulting from numerous inquiries receivedduring his service as reviser of statutes in Florida.1 4 Often, thecaller would complain that a statutory provision had been ren-dered meaningless by the repeal of another provision referencedtherein and then express surprise upon being informed of the wellestablished doctrine that the repealed law still existed in its incor-porated manifestation.1 '

Further evidence of the widespread unawareness of the commonlaw doctrines concerning statutory cross references can be seen inthe paucity of appellate court opinions that even mention theproblem. Despite the considerable potential for polemical exploita-tion that resides in the statutory cross reference morass and thepossible substantive importance of a particular reference, therehave been fewer than a dozen appellate opinions in Florida thatdeal with the common law doctrines that have evolved in responseto this problem." About half of these opinions grossly misapplythese doctrines. 17

14. 1967-1977.15. Commencing with the 1973 edition, a brief warning note was inserted in the Preface

to the Florida Statutes. But who reads a preface?16. State ex rel. City of Casselberry v. Mager, 356 So. 2d 267 (Fla. 1978); Reino v. State,

352 So. 2d 853 (Fla. 1977); Hecht v. Shaw, 151 So. 333 (Fla. 1933); Williams v. State ex rel.Murphy, 131 So. 864 (Fla. 1930); Kennedy v. Watson, 131 So. 866 (Fla. 1930); State v. Harl-lee, 131 So. 866 (Fla. 1930); Van Pelt v. Hilliard, 78 So. 693 (Fla. 1918); Bushnell v. Denni-son, 13 Fla. 77 (1870); Jones v. Dexter, 8 Fla. 276 (1859); State ex rel. Springer v. Smith, 189So. 2d 846 (Fla. 4th Dist. Ct. App. 1966).

17. See, e.g., Reino v. State, 352 So. 2d 853 (Fla. 1977) (court applied cross reference

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Further compelling evidence of this widespread misapplicationof cross reference doctrine can be seen in the ineptness with whichit has on occasion been applied by Florida appellate courts. Forexample, in a recent case," the Fourth District Court of Appealwas confronted with an obvious statutory ambiguity. The principalstatute" provided for judicial review of annexation proceedings inthe circuit court "pursuant to § 120.31," whereas the referencedsection provided for review by certiorari in the district courts ofappeal. One of the reasons that the court gave for finally opting infavor of review in the circuit court revealed its total unawarenessof statutory cross reference doctrine. Said the court: "Another ar-gument supporting jurisdiction for review in the circuit court isthat Section 120.31 was repealed by the Legislature in 1974 ....Since Section 120.31 has been repealed, it is a nullity, and any ref-erence to it in another statute that is still effective may properly beignored."' 0 Of course, under the common law doctrine, the repealof section 120.31 would not have affected its existence as an incor-poration by reference in the municipal annexation law. The court'sstatement could not have been more contrary to the well estab-lished doctrines.

In the relatively recent case of Reino v. State,"' a state attor-ney's office and the justices of the Florida Supreme Court demon-strated that even when there is some awareness of cross referencedoctrines, the knowledge may be so flawed as to be tantamount tounawareness. At issue was whether prosecution for a murder alleg-

doctrine when there wasn't even a cross reference); Overstreet v. Blum 227 So. 2d 197 (Fla.1969) (referenced statute held insulated from subsequent administrative interpretation);County of Seminole v. City of Lake Mary, 347 So. 2d 674 (Fla. 4th Dist. Ct. App. 1977)(referenced statute subsequently repealed held a nullity via a vis adopting statute).

18. County of Seminole v. City of Lake Mary, 347 So. 2d 674 (Fla. 4th Dist. Ct. App.1977).

19. FLA. STAT. § 171.081 (1975).20. County of Semionole v. City of Lake Mary, 347 So. 2d at 675. Shortly thereafter, the

Florida Supreme Court was confronted by the same issue in the case of State ex rel. City ofCasselberry v. Mager, 356 So. 2d 267 (Fla. 1978). The supreme court also decided in favor ofreview in the circuit court, although on the ground that this was required by the essentiallylocal character of the annexation proceeding. Id. at 269. However, concerning the statutoryreference to § 120.31, Justice England, writing for the court, showed that he was aware ofthe prevailing doctrine. He explained, at 268 n.3:

The fact that § 120.31 has been repealed, however, does not render its provisionsineffective for the purposes of § 171.081. We have held that the repeal of onestatute which the legislature has by reference incorporated into another will notaffect the referencing statute. (Citing Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693(1918)).

21. 352 So. 2d 853 (Fla. 1977).

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edly committed during the hiatus between the United States Su-preme Court's holding in Furman v. Georgia" (which invalidatedthe death penalty) and the effective date of the new death penaltystatute enacted by the Florida Legislature' 8 was subject to the two-year statute of limitations."'

The limitation statute provided that prosecution of an offense"punishable by death" could be commenced at any time,'5 but thatprosecution of an offense "not punishable by death" had to becommenced within two years after commission.26 The personscharged argued that since the alleged offense was, as a result ofFurman, not punishable by death, it fell within the category of of-fenses barred by the two-year statute of limitations.' 7 The stateargued, in part, that the various statutes designating capital crimeshad been incorporated by reference into the limitations statute byvirtue of the phrase "punishable by death" and, as incorporated,were, in accordance with the well-established doctines relating tostatutory cross references, unaffected by the subsequent holding ofthe U.S. Supreme Court in the Furman case.'"

Justice Sundberg, writing for the majority, took this attemptedapplication of cross reference doctrine quite seriously,"9 apparentlyfailing to notice that it was facially flawed in at least two ways. Forone, there was not even a statutory cross reference involved, in thesense that would have warranted invoking the doctrines relating tostatutory cross references. At most, there was what might be

22. 408 U.S. 238, rehearing denied, 409 U.S. 902 (1972).23. Ch. 72-72, 1972 Fla. Laws 241 (current version at FLA. STAT. § 921.141 (1979)).24. FLA. STAT. § 932.465 (1971).25. Id. at § 932.465(1).26. Id. at § 932.465(2).27. 352 So. 2d at 855.28. Brief for Respondent at 8-10, 352 So. 2d 853 (Fla. 1977):

The reason that murderers may be prosecuted at any time, even though theiracts were committed during the post-Furman, pre-October 1, 1972, period, is be-cause of the principle of statutory construction which is denominated "incorpo-rated by reference." This principle is widely recognized .... (citing 2 L.Ed. 2d2048, 168 A.L.R. 627, and Van Pelt v. Hilliard, 78 So. 693 (Fla. 1918)).

What this principle means in the instant case is that when the limitations stat-ute incorporated the first degree murder statute by reference to "offenses punisha-ble by death," the incorporation into the limitations statute was unaffected by themodification of the penalty provision of the first degree murder statute by theFurman decision.

29. 352 So. 2d at 858-60. Justice Sundberg devoted two pages of his opinion to the mostthorough review of the history of cross reference doctrine ever attempted by a Florida ap-pellate court. Justice Karl dissented without opinion.

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termed an implied reference, in the sense that other statutes iden-tified the offenses that were "punishable by death." References ofthis kind are even more remote than the so-called general refer-ences, in terms of the specificity of legislative intent that wouldjustify application of the common law doctrines relating to specificreferences.A0

The second way in which the attempted application of cross ref-erence doctrine was facially defective was that it purported to in-sulate the incorporation by reference from the effect of a subse-quent judicial opinion.8 1 Of course, the purpose of the common lawdoctrines is to assist in inferring legislative intent concerning theeffect of subsequent legislative changes to the referenced law-notthe effect of subsequent court opinions.82 As to the latter, the legis-lature has no legitimate discretion and therefore expresses no in-tent, by implication or otherwise. The Reino court would havebeen better advised had it simply ignored this phase of the respon-dent's argument or dismissed it as inappropriate under the facts ofthe case.

Another example of the judicial misuse of cross reference doc-trines is the much-cited case of Overstreet v. Blum.88 There, theFlorida Supreme Court rejected the argument that a tax statuteproviding that a tax on rooming accommodations was to be basedon the same room count "as used by the hotel and restaurant com-mission in [section] 509.251,"" constituted an unconstitutionaldelegation of legislative authority to the commission. The basis forthe court's rejection was that since the reference to section 509.251was specific, the common law rule concerning specific referencesrequired the room count to be the one in effect at the time of thereference, and therefore no discretion had been vested in thecommission.8"

Here again, the court seems to have forgotten the basic purposeof the doctrines it purported to apply. Since the referenced section509.251 had not been amended since its incorporation by referenceinto section 205.251, these doctrines were not even involved in the

30. Id. at 859. This type of implied reference also occurs in the thousands of words andphrases that are encountered throughout the published statutes and are defined to somedegree by a statutory provision other than the one in which they occur.

31. Id. at 858.32. See text supra, accompanying notes 8-10.33. 227 So. 2d 197 (Fla. 1969).34. FLA. STAT. § 205.251(1) (1967), 227 So. 2d at 198.35. Id. This argument had been suggested by the appellant Attorney General of Florida.

Brief for Appellant at 13-16, Overstreet v. Blum, 227 So. 2d 197 (Fla. 1969).

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first place. But even if a subsequent amendment to the referencedsection had legitimized the court's use of the cross reference doc-trine, it would only have been relevant for the wording of the in-corporation by reference-not for administrative actions that mayhave taken place pursuant to the referenced provision. In short,cross reference doctrine was quite irrelevant to the meaning of thetax statute involved.

It would be an unwarranted digression from the main purpose ofthis paper to attempt to explain the pervasive misuse of cross ref-erence doctrines illustrated by such cases as these as other than aprobable symptom resulting from neglect of the law relating to leg-islative process by the law schools and the profession. 7 In anyevent, the symptom itself is sufficiently serious to warrant immedi-ate and radical treatment.

B. Expression of Legislative Intent

When a section of the Florida Statutes has been amended subse-quent to its incorporation by reference into another section, theuser of the statutes must inquire whether the legislature intendedsuch an amendment to be included in the incorporation. The com-mon law doctrines are intended to assist in inferring such intentonly when it has not been expressed. The user must be alert todetect stated expressions of intent.

The intention that later amendments are to be included in theincorporation of referenced material is at times quite explicit. Forexample, section 123.32, Florida Statutes, 8 which is part of thechapter on judicial retirement, provides: "Where in this law refer-ence is made to state and federal laws, it shall be understood thatsuch references are intended to include such laws as they now existor may hereafter be amended. ' '8 9

A procedure recently employed by the Florida Legislature wasobviously intended to express an intention contrary to that which

36. See text supra, accompanying notes 8-10.37. See, Dolan, Law School Teaching of Legislation, 22 J. LEGAL EDUC. 63 (1969);

Horack, The Common Law of Legislation, 23 IowA L. Rim. 41 (1937); Pound, Common Lawand Legislation, 21 HARv. L. REV. 383 (1908); Stewart, Foreword: Lawyers and the Legisla-tive Process, 10 HARv. J. LEGIS. 151 (1973).

38. (1979).39. FLA. STAT. § 123.43 (1979) is identically worded. Of course, to the extent that these

sections purport to adopt as Florida law future changes to incorporated federal statutes,they are unconstitutional as an invalid delegation of legislative authority. State v. Rodri-quez, 365 So. 2d 157 (Fla. 1978); Freimuth v. State, 272 So. 2d 473 (Fla. 1972); FloridaIndus. Comm'n v. State, 21 So. 2d 599 (Fla- 1945).

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would have been inferrable using the common law rule. The 1979legislature amended section 409.266, Florida Statutes,40 which hadbeen specifically referenced in section 409.345(10), Florida Stat-utes. 1 Under the common law rule the 1979 amendment would nothave applied to the adopting provision.4 ' In this instance, however,it was intended that the amendment would apply. The legislatureexpressed this intent by reenacting the adopting provision withoutchange. The following explanation appeared in the directory word-ing of the reenacting section: "For the purpose of incorporatingsection 409.266, Florida Statutes, 1978 Supplement, as amended bythis act, in the cross-reference thereto, subsection (10) of section409.345, Florida Statutes, 1978 Supplement, is reenacted toread. .. .

Technically, there is little question that this procedure effec-tively incorporated the amendment into the adopting statute. It isquestionable, however, whether this was the best procedure to ac-complish this purpose. The directory wording in which the legisla-ture expressed its intent is routinely left uncodified. Therefore,only the careful researcher who is knowledgeable about the legisla-tive process would learn of it. Of what value is an expression oflegislative intent that does not come to the attention of the major-ity of users of the Florida Statutes? The more effective procedurewould have been to add something similar to: "as amended byCommittee Substitute for House Bill 506 (1979)," after the specificreference in the adopting statute.44

C. Specific Versus General References

Viewed abstractly, the distinction between specific and generalreferences seems too clear to admit of doubt. Unfortunately, thereare pitfalls for the unwary researcher even in making this basicdistinction.""

The principal criterion by which specific references are distin-

40. (1978 Supp.)41. Ch. 78-433, § 16, 1978 Fla. Laws 1433.42. See text infra, accompanying note 97 for discussion suggesting that the common law

fails to deal adequately with the kind of reference here involved and that it would be morereasonable to infer a legislative intent contrary to that indicated by the common law rule.

43. Ch. 79-382, § 2, 1979 Fla. Laws 1910.44. The reviser could substitute the session law chapter number in the Florida Statutes

version. However, the statutory rule of construction proposed at the end of the present pa-per, see text infra preceding note 103, would obviate the necessity of any expression ofintention in the circumstance here described.

45. See generally Read, supra note 3, at 273-77.

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guished from general references is the degree of certainty withwhich the referenced provisions can be identified. Yet, how shoulda reference to a specific chapter of the Florida Statutes be catego-rized? A reference to a numbered chapter would arguably be sub-ject to the doctrine relating to specific references. But FloridaStatutes chapters are organized by subject matter, with the resultthat each chapter constitutes "the law dealing with a specified sub-ject.' ' 6 How would one distinguish for this purpose, therefore, be-tween a reference to chapter 245, on the one hand, and the "lawrelating to disposition of dead bodies," on the other?'"

Even descriptive references may be sufficiently focused to beconsidered specific. An example is "[a]ll provisions of the electionlaw pertaining to a contest of an election of constable" which washeld to be a specific reference.' On the other hand, the SupremeCourt of Washington treated as general a reference to waiver ofjury trial "as in civil cases in courts of record, in the manner pre-scribed by law,"' 9 and therefore applied the law in force at thetime of the proceedings.

Even when a reference is to the number of a particular section ofstatutory law, there is no absolute assurance that a court will treatit as a specific reference for the purpose of applying the commonlaw doctrines. In a 1943 case,60 the Supreme Court of Wisconsintreated a statutory provision that certain village improvementsshould be made "pursuant to the provisions of subchapter XX ofchapter 64bb of the statutes" as a general reference which includedsubsequent amendments to the referenced provisions."1 The courtreasoned that the purpose of the reference had been to adopt "thewhole scheme of procedure used in the cities" and concluded:"This being so, the fact that the law is referred to also in terms ofthe sections of the statutes in which it is to be found is not consid-ered sufficient to make it an adoption of just one particular stat-ute."8 Similarly, in a 1977 opinion, the United States Court ofAppeals for the Seventh Circuit, by an extraordinarily complexline of reasoning, concluded that a statutory reference to "the pro-

46. See text, supra at note 11.47. FLA. STAT. ch. 245 (1979).48. Hutto v. Walker County, 64 So. 313, 314 (Ala. 1913).49. Chelan County v. Navarre, 80 P. 845, 846 (Wash. 1905).50. George Williams College v. Village of Williams Bay, 7 N.W.2d 891 (Wis. 1943).51. Id. at 893.52. Id. at 894.53. Director, Office of Workers' Comp. v. Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977).

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visions of Public Law 803, 69th Congress (44 Stat. 1424, approvedMarch 4, 1927), as amended (other than the provisions containedin sections 1, 2, 3, 4, 8, 9, 10, 12, 13, 29, 30, 31, 32, 33, 37, 38, 41, 43,44, 45, 46, 47, 48, 49, 50, and 51 thereof)"" was actually "a generalreference masquerading as a specific and descriptive reference,"with the consequence that it was construed to include subsequentamendments to the referenced provision."

These are, of course, isolated cases, and the difficulty of distin-guishing between specific and general references should not beoverstated. Nevertheless, it is clear that the practitioner cannot af-ford to take even this phase of the statutory cross reference prob-lem for granted.

IV. A FLORMA ABERRATION

The 1859 Florida case of Jones v. Dexter" has been creditedwith originating the generally accepted exception to the originalcommon law cross reference doctrine, to the effect that a generalreference to the law regulating a given subject takes the law as itexists at the time it is applied-including any amendments subse-quently enacted.57 It is ironic that although this principle is gener-ally accepted in other jurisdictions,5" its authority in the state ofits origin is very much in doubt. This unfortunate circumstance isthe result of a pair of aberrational holdings in 1930 by the FloridaSupreme Court" and a 1977 opinion by the same court" that ap-parantly legitimized and revived the two earlier decisions.

A. A Variation on the Theme of Jones v. Dexter

The opinions of the Florida Supreme Court in Williams v.State,61 and State v. Harllee,62 were handed down on the samedate and directed to the same issue." The reference in the adopt-ing statute in Williams provided that "the fees of Constables shall

54. Id. at 320 n.12.55. Id. at 329.56. 8 Fla. 276 (1859).57. Id. at 288-89. See also Poldervaart, supra note 3, at 724; Read, supra note 3, at 272.58. See note 11 supra.59. Williams v. State, 131 So. 864 (Fla. 1930); State v. Harllee, 131 So. 866 (Fla. 1930).60. Reino v. State, 352 So. 2d 853 (Fla. 1977).61. 131 So. 864 (Fla. 1930).62. 131 So. 866 (Fla. 1930).63. They involved different statutes, however. In Williams, the court was reviewing a

grant of mandamus, whereas in Harlee, a denial of mandamus was involved.

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be the same as is [sic] allowed to Sheriffs of the counties for likeservices." 4 The referenced statute in Harltee similarly providedthat "[t]he fees of a justice of the peace shall be the same as thoseof the clerk of the circuit court for similar service."6 5 The fees forboth the sheriffs and the clerks of the circuit court had been in-creased subsequent to the dates of the respective reference stat-utes." A constable and a justice of the peace each brought actionsin mandamus to require their respective boards of county commis-sioners to pay them fees at the higher rates provided by the laterlaws. The question in both cases was whether the increased feesenacted by the subsequent amendments were included in the re-spective incorporations by reference. In other words, were the con-stables and justices of the peace entitled to the higher fees thatprevailed at the time of their suits for mandamus, or were theylimited to the lower fees that prevailed at the time the respectivereference statutes were enacted?

Since both references were general in nature, the issue obviouslyfell within the rule of Jones v. Dexter,67 to the effect that a generalreference includes subsequent changes to the referenced law. Jus-tice Buford wrote an opinion for the court affirming the trialcourt's issuance of a peremptory writ in the Williams case, basedsquarely on the authority of Jones v. Dexter.68 Curiously, subse-quent to the publication of Justice Buford's opinion, the court re-considered the case on rehearing and published an opinion by Jus-tice Whitfield taking the opposite view and reversing the judgmentof the trial court.69

In reversing its earlier position, the court continued to view thereferences as general, but held that the Jones v. Dexter exceptionto the common law rule70 did not apply when the referenced lawappeared only in another section of the same statute as the crossreference itself. The court summarized its holding at the conclu-

64. Ch. 3106, § 4, 1879 Fla. Laws 45.65. Section 1630(2) Rev. Stat. 1892. This specific reference provision appeared for the

first time in the Revised Statutes 1892 and was not attributed to any specific act of thelegislature. 131 So. at 867.

66. Ch. 7886, 1919 Fla. Laws 226 and ch. 10091, 1925 Fla. Laws 112 (sheriffs); ch. 11893,1927 Fla. Laws 393 (clerks of the circuit court).

67. 8 Fla. 276 (1859); see text supra, at note 10.68. Williams v. State, 125 So. 358, rev'd on rehearing, 131 So. 864 (Fla. 1930).69. 131 So. 864 (Fla. 1930). In both Williams and Hartlee, Justice Whitfield wrote the

majority opinion, Chief Justice Terrell and Justices Strum and Brown concurred in the ma-jority opinion, and Justice Buford, with Justice Ellis concurring, dissented with an opinion.

70. See text supra, at note 10.

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sion of the Harltee opinion:

When one provision of a statute by general words of referenceadopts provisions that appear only in another section of the samestatute, future amendments of the adopted provisions are not tobe regarded as included in the adoption unless an intent to in-clude such future amendments in the adopting provision clearlyappears.

7 1

The Florida Supreme Court's decisions in the Williams andHarllee cases are subject to serious criticism on the ground thatthey exhibit confusion concerning the "single enactment" concept,they lack precedent, and they are illogical.

1. Confusion concerning the "single enactment" concept.

A decisive element in the court's holding was the notion that theadopting and referenced provisions were both enacted as part ofthe same statute. It is evident, however, that the court was confus-ing two different concepts: (1) an act of the legislature; and (2) acodification of all of the general law of the state. This confusion isstrongly suggested by the court's opinion in the Williams case; it isconclusively exhibited in the Harllee opinion.

In Williams, the adopting and referenced provisions did indeedoccur originally in the same act of the legislature.7 2 Yet, the opin-ion also makes much of the fact that these provisions were carriedthrough successive codifications of Florida law, concluding:

The Revised General Statutes of 1920 are one enactment; andsection 2899 thereof refers to the fees "as are allowed" by theprovisions of section 2891 of the same revision. Both sections be-ing in the Revised General Statutes, section 2899, [sic] fixes thefees of constables to "be the same as are allowed sheriffs for likeservices," meaning the fees that "are allowed" by the same gen-eral enactment and not by subsequent statutes.7"

As previously mentioned, the court's confusion of a legislativeact and a general codification of law appears with even greater cer-tainty in the Harlee opinion. In the facts of that case, the refer-ence provision made its first appearance, not as an act of the legis-

71. 131 So. at 868.72. Ch. 3106, §§ 4, 2, respectively, 1879 Fla. Laws 45.73. 131 So. at 865.

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lature, but as section 1630 of the Revised Statutes 1920. Moreover,the court's explanation of its holding confirms that it is indeed us-ing the word "enactment" in the codification sense.

In each case of enactment and re-enactment the section as tofees allowed justices of the peace referred to the provisions of asection in the same statute defining the fees allowed to clerks ofthe circuit courts. The Revised Statutes of 1892, the GeneralStatutes of 1906, and the Revised General Statutes of 1920 eachconstitutes one enactment. Section 3084, Revised General Stat-utes, defines the fees of the clerks of the circuit courts. Section5971, Revised General Statutes 1920, makes the fees of the clerksof the criminal courts of record "the same as the fees of the clerksof the circuit courts in like cases." Section 3312, Revised GeneralStatutes 1920, allows the clerks of the civil courts of record "thesame fees as clerks of the circuit court receive for similar work."Section 3384 Rev. Gen. Stats. 1920, makes the fees of a justice ofthe peace "the same as those of the clerk of the circuit court forsimilar services." The last three sections refer to fees that are de-fined in section 3084, and all four of the sections are contained inone enactment, viz. the Revised General Statutes of 1920."'

It is true that enactment of a general codification into positivelaw does constitute a legislative reenactment of the contents ofsuch codification for some purposes.7 5 But to treat it as constitut-ing a single enactment in the context of the statutory cross refer-ence problem is to nullify completely the Jones v. Dexter excep-tion to the common law doctrines relating to specific references.After all, the Florida Statutes of this day constitute a single enact-ment in the same sense that the court employed in referring to theRevised Statutes, the General Statutes, and the Revised GeneralStatutes. Those codifications were the product of bulk revisions,7 6

whereas the Florida Statutes are the product of a continuous revi-sion program. 7 But this difference is quite irrelevant here; bothare enacted into positive law by an act of the legislature. If an in-corporation by general reference does not include subsequentamendments to the referenced law simply because both are in theFlorida Statutes, it is difficult to imagine any circumstance in

74. 131 So. at 867.75. See Means, Repeals by Implication in Florida: A Case Study, 7 FLA. ST. U.L. REv.

423, 451-56 (1979).76. Ch. 4055, 1891 Fla. Laws 92; ch. 5372, 1905 Fla. Laws 3; ch. 7838, 1919 Fla. Laws 109.77. FLA. STAT. § 11.2421 (1979).

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which the rule of Jones v. Dexter could ever apply.

2. Lack of precedent.

The Florida Supreme Court made no real effort to support itsholdings in Williams or Harilee by judicial precedent from Floridaor any other jurisdictions. Insofar as a few cases from other juris-dictions had dealt with the matter of references to other provisionsof the same statutes, they would have afforded the court no com-fort. In general, those few cases merely confirmed the rule that in-corporations by specific reference are not affected by subsequentchanges to the referenced provision, even when the reference is toa provision of the same statute.78 In the Harllee opinion, the courtdid cite the Florida case of Van Pelt v. Hilliard79 and the U.S.Supreme Court's opinion in Panama R.R. v. Johnson" in a mannersuggesting that these cases supported the conclusion that incorpo-rations by general reference do not encompass subsequent changesto the referenced law when it is part of the same statute.81 How-ever, since the applicability of subsequent amendments was noteven an issue in either case, they did not provide any support.8 '

3. Absence of logical support.

Perhaps the most telling criticism of the rule enunciated by theFlorida Supreme Court in the Williams and Harllee cases is that itwas completely illogical. The court made no effort to justify itsholding in logical terms; it would have been difficult to do so sincelogic would have compelled an opposite conclusion. The questionwhether statutory cross references, general or specific, should in-clude subsequent changes to the referenced law produces a near-standoff between two equally compelling considerations. On theone hand, the convenience and reasonable expectations of theusers of the statutes-many of whom are apparently quite unaware

78. Hassett v. Welch, 303 U.S. 303, 314 (1938); Calumet Foundry & Machine Co. v.Mroz, 137 N.E. 627, 630 (Ind. App. 1922); Annot., 168 A.L.R. 627, 632 (1947); 73 AM. JUL-STatutes § 30, at 286 (1962).

79. 78 So. 693 (Fla. 1918).80. 264 U.S. 375 (1924).81. 131 So. at 867-68.82. In Panama R.R. v. Johnson, the U.S. Supreme Court expressly approved the incor-

poration by reference of "the Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65,and its amendments." 264 U.S. at 391-92 (emphasis added). However, it does not appearfrom the published opinion whether the amendments referred to occurred prior to or subse-quent to the enactment of the adopting statute.

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of the exotic common law doctrines concerning statutory cross ref-erences-would obviously be best served by a rule that all refer-ences, specific as well as general, include subsequent amendmentsto the referenced provision. Such a rule would render harmless thepropensity of most users simply to consult the current version of areferenced provision.

On the other hand, until recently,88 such a rule would also havemeant that the legislature would be legislating blindly whenever itamended an existing law that had previously been cross referenced.It would not be reasonable to impose such a consequence upon anylegislative body.

As to references to provisions of the same statute, however, logicclearly points in the opposite direction from that taken by theFlorida Supreme Court in the Williams and Harilee cases. Sincethe normal expectation of the user that he can safely consult thecurrent version of a referenced provision is more reasonable in thiscircumstance, the obligation of the legislature to conform to thatexpectation is correspondingly stronger. Also, and more important,since the legislature would probably be aware of cross referencesthat were enacted by the same statute that created the provisioncurrently being amended, the danger of blind legislation would begreatly reduced. Both circumstances compel a conclusion oppositeto that reached by the court in the Williams and Harllee cases.

B. Resurrection of a Dormant Doctrine

Later users of statutes apparently recognized the lack of merit ofthe Williams and Harilee rationale. The rule set out by these caseswas not used as precedent and was never relied upon in an appel-late opinion. Indeed, were it not for its revival in the recent case ofReino v. State," there would be little justification for such atten-tion to it in the present paper. The inapplicability of cross refer-ence doctrine to the facts of the Reino case has already been dis-cussed.85 The understanding of cross reference doctrines by Floridapractitioners would have been better served if the Reino court hadrejected or ignored as frivolous the state attorney's effort to injectthose doctrines into the case." That course would at least have leftthe rule of Williams and Hartlee in the state of limbo it so richly

83. See text infra, preceding note 112.84. 352 So. 2d 853 (Fla. 1977). See text supra, beginning at note 21.85. See text supra, beginning at note 21.86. See note 28 supra.

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deserved. Similarly, confusion would have been minimized if theReino court had recognized the defects of those cases and expresslyrepudiated them.

Unfortunately, the court followed neither of these alternatives.Once the court accepted the respondent's injection of the cross ref-erence issue into the case, it sought to negate the argument by ob-serving that it was based on the common law rule relating to spe-cific references, whereas the reference in Reino was general.87

Apparently, while preparing a response to the respondent's argu-ment, the court encountered the 1947 conclusion of an annotatorthat said the Florida cases, taken together, "do not seem to be inharmony with the . . . rule [as to general references]."88 If thismeant that the usual rule as to general references did not apply atall in Florida, it would have been difficult to deal with the argu-ment of respondent. As a result, the court undertook a general re-view of the Florida cases on the subject.

Although the court stated early in its review that closer scrutinyof the Florida cases led it to believe the annotator was in error,8"the Reino court nevertheless finally admitted that the 1930 caseshad "engrafted a variation on the general rule where the adoptedprovision was enacted at the same time as and as another sectionof the same statute in which the adopting provision appears.""Unfortunately, instead of analyzing the cases cited by the annota-tor-the principal one being Williams v. State91-and rejectingthem for their defects,"' the court chose simply to distinguish thereference before it as not being to a provision of the same statute."Thus, the error of the 1930 cases" was revived and given new life.

87. 352 So. 2d at 858.88. Annot., 168 A.L.R. 627, 634 (1947).89. 352 So. 2d at 858.90. Id. at 859.91. See text supra, beginning at note 61.92. See text supra, following note 71. It is strange, indeed, that the Reino court failed to

detect the confusion in the 1930 opinions between codifications of general law and acts ofthe legislature. See text supra, accompanying note 71. The court's discussion of the Wil-liams and Hartlee cases makes clear that it was quite aware of the kind of "enactments"being referred to. Concerning the Williams opinion, it observed that the statutory provision"limited the constable to fees allowed sheriffs by the same general enactment(Rev.Gen.St.1920, §§ 2891, 2899). . . ." 352 So. 2d at 859. Similarly, in its discussion of theHarlee opinion, the court commented that "adopting and adopted provisions were sectionsof the same general enactment (Rev.Gen.St.1920, §§ 3084, 3384) . Id. at 859.

93. 352 So. 2d at 859.94. See text supra, following note 70.

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V. DEPARTURES FROM THE COMMON LAW RULE

Even the practitioner who is relatively well acquainted with thecase law concerning specific statutory cross references can becomeconfused when attempting to use the common law rules as guide-lines. This is because the case law does not accurately reflect theprobable legislative intent concerning many-perhaps the vast ma-jority-of the specific cross references that the practitioner is likelyto encounter.

In view of the rather mechanistic manner in which appellatecourts have tended to apply the common law rules,95 one wouldexpect that the question concerning the applicability to incorpora-tions by reference of subsequent changes to the referenced provi-sions would be easily answered. If the legislature has expressed itsintention, follow it. If it hasn't, infer its intent according towhether the reference is specific or general.

Unfortunately, the rule does not function that smoothly. Indeed,there are many instances-a vast majority of them, in the author'sopinion-in which the legislature simply could not have intendedthe outcome that would be inferrable on the basis of the commonlaw principles. Because of some relationship between the adoptingand referenced provisions, there is often no adequate reason forthe legislature to deny to the user of the statutes the convenienceof consulting the current version of a referenced provision. It isappropriate to identify at this point the several categories of spe-cific references that apparently lie outside the common law rules.

A. Reciprocal Cross References

Occasionally, there will be two statutory provisions that specifi-cally cross reference each other. For example, in the chapter of theFlorida Statutes on injunctions," sections 60.05 and 60.06 provideprocedures for the abatement of nuisances "as defined in a.823.05." Section 823.05, on the other hand, defines what placesmay be declared nuisances and provides that such nuisances "shallbe abated or enjoined as provided in ss. 60.05 and 60.06." Withrespect to provisions so related by reciprocal specific references, itwould be futile to attempt to apply the common law rule that spe-cific references take the referenced language as it exists at the timeof the reference and are not affected by subsequent changes to the

95. See note 12 and accompanying text.96. FLA. STAT. ch. 60 (1979).

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referenced provisions. It is apparent that any such subsequentamendment to either of the provisions that are so related would befully operative as to both.

B. Cross References Having A Negative Implication

A more frequently encountered category of statutory cross refer-ences that apparently fall outside the common law doctrine is thatin which the reference has an exemptive effect. This type of refer-ence excludes the adopting provision from the effect of the refer-enced provision. Some examples from Florida Statutes 1979 follow:

1. Section 20.19(6)(f)2.: "All matters before the committee con-cerning abuse or deprivation of rights of an individual client...shall be closed to the public and exempt from the provisions of s.119.07(1)."

2. Section 201.02(4): "The tax . . . shall also be payable upondocuments which convey or transfer ... any beneficial interest inlands, tenements, or other realty . . . even though such interestmay be designated as personal property, notwithstanding the pro-visions of s. 689.071(4)."

3. Section 320.20: "The revenues derived from the licensing ofmotor vehicles, excluding those collected and distributed under theprovisions of s. 320.081, shall be distributed monthly . . . to thefollowing funds."

4. Section 403.813(2): "No permit under . . . chapter 373 ...shall be required for activities associated with the following typesof projects . .. ."

In each of these examples, the adopting provision is effectivelyexcluded from the effect of the referenced provision by being ex-empted in some manner. In such instances, it is only in a verytechnical sense that the common law rule as to specific referencescould possibly be applied. Thus, in the first of the examples listed,it could be asserted that such matters before the committee werenot exempt from any provisions of s. 119.07(1) that had been ad-ded by subsequent amendment. It is not reasonable, however, toattribute such an unlikely intent to the legislature. It is more rea-sonable to infer the intent that the referenced provisions were in-tended to be taken as of the time of application-in other words,that subsequent changes be included in the incorporation byreference.

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C. Use of Cross References for Directory Purposes

Cross references frequently contribute little or nothing to themeaning and thrust of the adopting provision, but are apparentlyincluded merely to direct the reader's attention to the externalprovision so he can determine some status or relationship referredto. An appropriate test for determining whether a specific refer-ence is of this category is to ascertain whether the meaning of theadopting provision would be materially altered by the deletion ofthe words constituting the reference. Consider, for example,whether deletion of the bracketed portions of the following exam-ples from the 1979 Florida Statutes would substantially alter themeanings of the respective provisions:

1. Section 400.23(2)(a): "The department shall enforce the appli-cable uniform fire safety standards established by the State FireMarshal [pursuant to s. 633.05(8)]."

2. Section 400.304(8): "The State Ombudsman Committee is au-thorized to call upon appropriate agencies . .. for such profes-sional assistance as may be needed. . ., including assistance fromany adult protective services programs of the department [as pro-vided for under ss. 409.026 and 828.043]."

3. Section 659.15: "On filing any charters or other papers relativeto banks or trust companies with the Department of State, fees [asprescribed in s. 607.361] shall be paid to the Department of Statefor the use of the state."

In each instance, application of the common law doctrine con-cerning specific references would lead to an absurd result thatshould not be attributed to the intention of the legislature. Sup-pose in the first example that s. 633.05(8) were subsequentlyamended to broaden the fire marshal's authority to establish firesafety standards. Literal application of the common law rule wouldrequire a conclusion that the department should not enforce stan-dards established under the new authority. Such an absurd inten-tion should not be attributed to the legislature. Similar horriblescan be imagined for the other examples.

D. References to Provisions within the Same Statutory Scheme

The final category of specific references failing to comport withthe common law rule includes numerous examples-perhaps thevast majority of specific references. These are specific references toprovisions within the same statutory scheme. They are often to an-other sub-unit of the same Florida Statutes section or to another

1981]


section of the same chapter. Occasionally, such references are to asection of a different chapter. Whichever pattern is followed, therelationship between the adopting and referenced provisions is anintimate one, within a common statutory scheme of regulation orother statutory objective. In view of the closeness of the relation-ship between the adopting and referenced provisions, it is simplyinconceivable that the legislature could tolerate-much less haveintended-an alteration between the two provisions resulting froma subsequent amendment to the referenced provision.

An especially notable example of this are the hundreds of crimi-nal penalty provisions located throughout the Florida Statutes.There are approximately 1,200 sections of the Florida Statutesthat contain provisions making some act or failure to act a crime.Such provisions normally designate the degree of misdemeanor orfelony that is involved, followed by a phrase indicating that theparticular crime is punishable as provided in a series of sections ofchapter 775. For example, section 228.091(1)(b)2, Florida Stat-utes, 7 provides that certain categories of persons who trespass onschool property are "guilty of a misdemeanor of the second degree,punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

Section 775.082 provides penalties by death or imprisonment forthe various categories of felonies and misdemeanors. Section775.083 provides for criminal penalty fines. Section 775.084 pro-vides penalties for habitual offenders. All three sections have beenamended since their original enactment in 1971,98 although not in amanner which raises serious questions of cross referenceconstruction."

But suppose section 775.082, Florida Statutes, mentioned in thepreceding paragraph, were amended to alter the penalties pro-vided. Would this create a cross reference problem as to the hun-dreds of Florida Statutes sections in which it is specifically refer-enced? It probably would for the relatively few sophisticates whowere sufficiently acquainted with the common law doctrines. Formost practitioners, however, it would suffice that the amended sec-tion was obviously intended to be referenced and that it was

97. (1979).98. Ch. 71-136, §§ 3-5, 1971 Fla. Laws 552.99. Section 775.084 was amended by ch. 75-116, § 1, 1975 Fla. Laws 218 and ch. 75-298,

§ 2, 1975 Fla. Laws 1080 which provided penalties for habitual misdemeanor offenders. Thisdid not create a cross reference problem, however, since references to sec. 775.084 were ad-ded to misdemeanor penalty provisions throughout the Florida Statutes only after theamendments of 1975. Id.

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closely related to the various adopting sections as part of a singlestatutory scheme, and no question would be raised. It would beinteresting to conjecture whether the uncertainty that is implicit inthis issue would raise a due process question in the context of acriminal penalty provision.

In the case of these references contained in the various criminalpenalty provisions, it is particularly obvious that the two provi-sions are indeed part of the same statutory scheme. In each in-stance, the enactment of the cross reference and the referencedprovision both occurred as part of the same massive legislative ef-fort by the 1971 Florida Legislature to restructure all of the crimi-nal penalties imposed by state law. In one of the longest bills everconsidered by the Florida Legislature, every criminal penalty pro-vision in the Florida Statutes was amended to the pattern quotedabove 00 and the referenced penalty provisions of chapter 775 wereenacted. 101

The fact that the language of reference and the referenced provi-sion were originally enacted as part of the same legislative acttends to support the conclusion that the two provisions are part ofa single statutory scheme. The continuing relationship between theadopting and referenced provisions as part of the Florida Statutesis even stronger evidence. For example, section 228.091(1)(b)2., re-ferred to previously, makes certain behavior a misdemeanor of thesecond degree, while section 775.082 specifies that the penalty for amisdemeanor of the second degree is a term of imprisonment notexceeding sixty days. The adopting provision specifies no penalty,and the referenced provision defines no crime. Both are requiredfor an effective criminal penalty provision. Indeed, the only waysection 775.082 can have any effect is to be referenced by someother provision.

This close of a relationship between adopting and referencedprovisions should not be a prerequisite to a finding that the twoprovisions are part of a single statutory scheme for the purpose ofinferring a legislative intention that subsequent amendments tothe referenced provision should be included in the incorporationby reference. Based on personal observations, the author would es-timate that about seventy-five percent or more of the approxi-mately 13,000 specific cross references to be found in the FloridaStatutes have a sufficiently close relationship. A few examples from

100. See text supra, accompanying note 97.101. Ch. 71-136, 1971 Fla. Laws 552.

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the 1979 Florida Statutes should suffice to illustrate this:1. Concerning lands for which development rights have been

conveyed to the county, section 193.501(3)(a) provides that whenthe covenant or conveyance is for ten years or more, the assessorshall consider no factors "other than those relative to its value forthe present use. . . ." Paragraph (b) then provides that when thecovenant or conveyance is for less than ten years, "the land shallbe assessed under the provisions of s. 193.011 [containing the regu-lar assessment procedures] . . . ." The statutory scheme has to dowith property assessments. The purpose of the reference is merelyto distinguish the different assessment procedures to be followed,depending on the length of the period of the covenant or convey-ance. Assuming an alteration of the assessment procedures byamendment to s. 193.011, the legislature would doubtless intendsuch altered procedures to apply to lands described in paragraph(b).

2. In the chapter concerning tax collections, section 197.0173(1)provides that certain penalties are to be imposed on any person"who willfully files information required under s. 197.0165 or s.197.0169 which is incorrect." The adopting and referenced provi-sions are both part of the statutory scheme for tax collections.Suppose section 197.0165 were amended to require additional in-formation and a person filed incorrect information under the newrequirement. It is inconceivable that the legislature would not haveintended such filing of incorrect information to be subject to thepenalty of the adopting section.

3. Section 440.10(1) of the Workers' Compensation Law providesthat every employer coming within the provisions of the chapter"shall be liable for. . . the payment to his employees, or any phy-sician, surgeon, or pharmacist providing services under the provi-sions of s. 440.13, of the compensation payable under ss. 440.13,440.15, and 440.16." Suppose one of the latter sections wereamended to require additional payments. It is inconceivable thatthe legislature did not intend that the employer should be liablefor such additional payments.

4. In the chapter concerning soil and water conservation, section582.18(1) provides that the election of supervisors for each conser-vation district shall be held "at the time of the second primaryelection provided for by s. 100.091." But suppose the latter sectionwere amended to change the date of the second primary. Could thelegislature conceivably have intended that the supervisors wouldcontinue to be elected at the old time while the second primary

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throughout the state was held at the new time? Such an absurdintent should not be attributed to the legislature.

In each of these examples, literal application of the common lawrule for specific references would exclude from the incorporationany subsequent amendments of the referenced provisions. In eachinstance, however, this would lead to an absurd result that the leg-islature could not possibly have intended. It would appear, there-fore, that in numerous cases, of which the foregoing are examples,the common law formula provides little assistance in divining thelegislative intent.

VI. CONCLUSION

Statutory cross references are indeed the "loose cannon" of stat-utory construction in Florida. It is difficult to imagine any otherapparently well settled area of the law in a more chaotic conditionthan the Florida law of statutory cross references. Consider the fol-lowing: (1) Although a practitioner consulting the statutory law islikely to encounter one or more specific references to other provi-sions of Florida law, many members of the legal profession, includ-ing some judges, are apparently quite unaware that the legislaturemay not have intended subsequent amendments to the referencedlaw to be included in the incorporation by references. (2) Despitethe fact that the common law rules relating to statutory cross ref-erences have a high potential for influencing the meaning of manystatutes, these doctrines have been resorted to by the practicingbar so infrequently that fewer than a dozen appellate opinions inthe history of the state have applied them. (3) Nearly half of theFlorida appellate opinions that have dealt with the common lawrules relating to statutory cross references grossly misapplied thoserules in the cases before them. (4) Finally, even if they were notignored or grossly misapplied, the common law rules relating tostatutory cross references do not provide an adequate guide to theprobable intent of the legislature in the vast majority of instancesin which such specific references appear in the statutory law.Could it be more obvious that reform is long overdue?

A. The Statutory Solution

The difficulties with statutory cross references focus sharply onwhether incorporations by reference include subsequent amend-ments to the referenced provisions. Since this is strictly a matter oflegislative intent, it follows that the most forthright and effective

1981]


solution would be one that was initiated by the legislature. It ispartly on this theory that the following statutory rule of construc-tion is proposed:

1.05 Statutory construction; statutory cross references.-(1) Unless expressly provided otherwise, a specific reference in

any section of Florida Statutes to any other section or sections orportion of a section of the Florida Statutes shall be understood asreferring to the referenced provision as it appears in the sameedition of the Florida Statutes as that in which the cross refer-ence appears.

(2) A general reference in any section of the Florida Statutes tothe law of this state relating to a specified subject matter shall,notwithstanding that both the adopting provision and the refer-enced law may have been enacted or reenacted as part of thesame statute, be understood as referring to the referenced law asit appears in the same edition of the Florida Statutes as that inwhich the cross reference appears.

(3) The legislative intent that a specific or general reference beunderstood as referring only to the referenced law as it exists atthe time the cross reference is enacted, and that subsequentamendments to the referenced law are not to be understood asbeing included in the incorporation by reference, may be ex-pressed by inserting after the cross reference a further referenceto the then-current edition of the Florida Statutes, viz., "... asprovided in s. 319.011, F.S. (1973)."

The approach to the solution of the statutory cross referenceproblem through adoption of a statutory rule of construction is notan untried innovation. Twelve states have already done so. 102 In-

102. COLO. Rav. STAT. § 2-4-209 (1973): "A reference to any portion of a statute appliesto all reenactments, revisions, or amendments thereof."

DmL. CODE ANN. tit. 1, § 307(b) (1974): "Whenever any reference is made to any portion ofthis Code or any other law, the reference applies to all amendments thereto."

HAWAII REV. STAT. § 1-25 (1976): "Whenever reference is made to any portion of the Ha-waii Revised Statutes or of any other law of the State, the reference applies to all amend-ments thereto."

IOWA CODE § 4.3 (1979): "Any statute which adopts by reference the whole of a portion ofanother statute of this state shall be construed to include subsequent amendments of thestatute or the portion thereof so adopted by reference unless a contrary intent is expressed."

LA. Rv. STAT. ANN. tit. 1 § 14 (West) (1973): "Whenever any reference is made to anyportion of the Revised Statutes or to any other law, the reference applies to all amendmentsthereto hereafter made."MINN. STAT. ANN. § 645.31, subd. 2 (1980): "When an act adopts the provisions of another

law by reference it also adopts by reference any subsequent amendments of such other law,except where there is clear legislative intention to the contrary."

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19811 STATUTORY CROSS REFERENCES

deed, the Florida Legislature has already applied this device to alimited segment of the state's statutory law, °10 and recently gavehalf-hearted consideration to a proposed statutory rule of con-struction similar to the one proposed here.'04

Strangely, although the repeal of referenced provisions is asmuch a source of the cross reference problem as their amendment,the construction statute of only one other state-Rhode Is-land-even refers expressly to repeals, and then only to express

N.D. CENrr. CODR § 1-02-40 (1959): "A reference to any portion of a statute applies to allre-enactments, revisions, or amendments thereof."

OHIO REv. CODE ANN. § 1.55 (Page) (1977): "A reference to any portion of a statute of thisstate applies to all reenactments or amendments thereof."

OR. Rzv. STAT. § 174.060 (1979):When one statute refers to another, either by general or by specific reference or

designation, the reference shall extend to and include, in addition to the statute towhich reference was made, amendments thereto and statutes enacted expressly inlieu thereof unless a contrary intent is expressed specifically or unless the amend-ment to, or the statute enacted in lieu of, the statute referred to is substantiallydifferent in the nature of its essential provisions from what the statute to whichreference was made was when the statute making the reference was enacted.

R.I. GzN. LAws § 43-4-13 (1956):Wherever any statute not herein repealed refers to and adopts any statute or

part of a statute which is herein repealed, or any provision or rule of law which isabrogated or modified by the general laws, such statute or part of a statute, orprovision or rule of law, so referred to and adopted, shall not be deemed repealedby the provisions of this chapter, but shall be in force only so far as the same shallhave been so adopted, and for no other purpose, and so far only as is not repug-nant to or inconsistent with the provisions of the general laws.

Tax. [Civ.] CODE ANN. tit. 5429b-2, § 3.07 (Vernon) (1958): "Unless expressly providedotherwise, a reference to any portion of a statute applies to all reenactments, revisions, oramendments of the statute."

Wvo. STAT. § 8-1-103(a)(iii) (1977): "Reference to a numbered section, subsection, para-graph, subparagraph or other subdivision 'of the statutes' and the abbreviation 'W.S.' whenused in conjunction with a statute section number or its designation or identification meansthe Wyoming Statutes in their most recently published form including amendments to origi-nal enactments."

103. See note 39 supra, and accompanying text.104. While serving as revisor of statutes, the author drafted a proposed bill to enact a

statutory rule of construction that would have had the same objective as the proposal madein the present article, see text infra, preceding note 102, and offered it to the leadership ofboth houses of the Florida Legislature. The operable working was as follows: "Unless ex-pressly provided otherwise, a reference in any section of the Florida Statutes to any othersection or sections or portion of a section of the Florida Statutes shall be understood asincluding all subsequent amendments to the referenced section or sections or portion of asection."

This proposal was rejected by the Senate leadership, but was introduced as a committeebill by the House Judiciary Committee, Fla. HB 2329 (1977); FLA. H.R. Joua- 639 (1977),and subsequently passed in the House of Representatives by a unanimous vote one dayprior to the end of the regular session. FLA. H.R. JOUR. 1144 (1977). The Senate took noaction on the bill.


the equivalent of the common law rule.10 5 One would expect suchconstruction statutes to be construed as requiring that incorpora-tions by reference also reflect the subsequent repeal of referencedprovisions.'" In any event, by directing the user of the statutes tothe current edition of the Florida Statutes for the operative text ofa referenced provision, the proposed statute reaches both amend-ments and repeals of referenced provisions.

The proposed statutory rule of construction effectively addressesall of the problems identified and discussed in the present articleas follows:

1. Lack of awareness of the rules regulating statutory crossreferences.

There is no reason to expect that sophisticated awareness of thestatutory rule will be any more widespread than that whichprevails under the common law rule. Since the proposed rule willsatisfy the normal expectations of most practitioners, however,such lack of awareness will no longer matter greatly.

2. The problem of implied intent.The proposed statutory rule eliminates any need to infer an in-

tent on the part of the legislature. Unless the legislature expressesits intent to the contrary, all statutory cross references are to thelaw as it appears in the current edition of the Florida Statutes.

3. Specific versus general references.Since specific and general references will be treated the same,

the distinction loses its relevance.4. The precedent of the Williams and Hartlee cases.Subsection (2) of the proposed statutory rule of construction is

intended to neutralize the irrational rule of the Williams and Har-Ilee cases, as recently revived in Reino v. State.

5. Confusion caused by inadequacy of the common law rule.There are a number of circumstances in which the common law

rule as to specific statutory cross references fails to reflect thelikely unexpressed intention of the legislature.107 In situations in-

105. See note 102 supra.106. The author sent a questionnaire to the reviser of statutes in the following six states

having such statutes as well as a constitutional provision forbidding amendment of a law byreference to its title only: Louisiana, North Dakota, Ohio, Oregon, Texas, and Wyoming. Ofthe three revisers that responded, two (Ohio and Texas) indicated that the respective stat-ute did apply to the subsequent repeal of the referenced provision, and one (North Dakota)replied that it did not. It is indeed difficult to understand how repeals and amendments canbe distinguished for the purpose of applying such a rule of construction.

107. See text supra, beginning at note 95.

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volving what have been referred to as reciprocal cross references, 0 8

references having an exemptive effect, 0 9 references having only adirectory purpose,'10 and references to provisions within the samestatutory scheme,' the common law rule as to specific referencesled to results so absurd that they could not reasonably be attrib-uted to legislative intent. Although experience shows that such ref-erences are rarely, if ever, the subject of judicial challenge, they arenevertheless a continuing source of confusion for the user of thestatutes, especially one with a sophisticated awareness of the com-mon law rules. By directing the user of the statutes to the currentedition of the Florida Statutes for the text of referenced provi-sions, the proposed statutory rule of construction effectively elimi-nates this potent source of confusion.

The proposed statutory rule of construction is not, however,without problems. By requiring the legislature to take precautionsto avoid legislating blindly whenever it amends an existing lawthat may have been referenced by another statute, the proposedsolution would place a new and relatively heavy responsibilityupon the Florida Legislature. Fortunately, as a result of recenttechnical developments, the Florida Legislature is well equipped tohandle this added responsibility.

The technical development referred to is the ability of the Flor-ida Legislature to search the text of the Florida Statutes electroni-cally. Since 1973, the full text of the statutes has been in computermemory and subject to search by electronic procedures. A FloridaStatutes section number constitutes a numeric word and can beinstantly located wherever it appears in the text of the FloridaStatutes with absolute accuracy. Presumably, then, if the legisla-ture adopts the proposed rule of construction, it would also adoptprocedures by which all references to sections being amended orrepealed would be routinely located and analyzed. The purpose ofthis analysis would be to determine whether the amendment or re-peal would have undesirable consequences in any of the sections inwhich the provision had previously been cross referenced. Also,since the proposed statutory rule of construction will apply to allexisting specific cross references, it will be necessary to scrutinizeall presently referenced provisions of the Florida Statutes to ascer-tain whether there have been amendments that are incompatible

108. See text supra, beginning at note 96.109. See text supra, following note 96.110. See text supra, following note 96.111. See text supra, accompanying note 97.

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with the adopting provisions. A revisor's bill could then be pre-pared to make the required corrective amendments. 12

Other problems have constitutional dimension. For example, onthe relatively rare occasion when an amendment to a referencedprovision is deemed incompatible with another section in whichthe amended provision is referenced, it is desirable that any re-quired corrective amendment to the latter section be enacted aspart of the same act that amends the referenced section. The rea-son is that this corrective amendment should be enacted only ifthe amendment to the referenced provision is enacted. Unfortu-nately, there is no assurance that the adopting and referenced sec-tions will conform sufficiently in subject matter to satisfy the re-quirements of the single subject provision of the FloridaConstitution.118

There is, however, ample precedent for an authoritative rulingby the Florida Supreme Court that would effectively sidestep thisdifficulty. In the 1966 case of Jones v. Christina,"4 the court ex-empted revisor's bills from the same requirement. The late JusticeDrew, writing for the court, explained: "[T]his provision is inappli-cable to revisor's bills where, necessarily, many subjects must bedealt with in one bill at regular intervals if the basic purpose ofcontinuing revision is to be accomplished."115 The need to join acorrective amendment with an amendment to a referenced provi-sion is similarly necessary and can be justified on the same ground.

A similar exemption would be required from a second constitu-tional requirement, which is that "No law shall be revised oramended by reference to its title only. Laws to revise or amendshall set out in full the revised or amended act, section, subsectionor paragraph of a subsection. 6 Florida cases have held that thisprohibition does not apply to implied amendments,117 for the obvi-ous reason that compliance at that level would be impossible, or to

112. Although this will be a massive task, it is not an insurmountable one. It was per-formed by the staff of the Statutory Revision Division of the Joint Legislative ManagementCommittee on the occasion of the submission of a similar statutory rule of construction tothe 1977 Legislature. See note 104 supra. However, the resulting reviser's bill of 133 pagesdid not reach the stage of formal introduction.

113. FLA. CONST. art. Ill, § 6: "Every law shall embrace but one subject and matter prop-erly connected therewith, and the subject shall be briefly expressed in the title."

114. 184 So. 2d 181 (Fla. 1966).115. Id. at 185.116. FLA. CONsT. art. I, § 6.117. City of St. Petersburg v. English, 45 So. 483, 487 (Fla. 1907).

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a reference in one statute to another statute,1 8 since that is notactually an amendment.

Unfortunately, neither precedent is available for the protectionof the proposed statutory rule of construction. By its operation,every amendment of an existing provision of the Florida Statuteswould also constitute an actual amendment-not an impliedone-of each section in which the existing section had been previ-ously adopted by reference. However, if one accepts the inevitabil-ity of the use of statutory cross references,11 9 as well as the univer-sally held view that the inclusion of subsequent amendments tothe referenced provision is strictly a matter for legislative intent,2 0

it becomes evident that the proposed rule could legitimately be ex-empted from the constitutional requirement on grounds of simplenecessity.

Although there is no record of the question ever having been ad-judicated, the same constitutional infirmity infects each existingsection of the Florida Statutes for which the legislature has ex-pressed its intention that an incorporated reference was to includelater amendments to the referenced provision. 2' In any event,should the issue arise in Florida, it is to be hoped that the Floridacourts would exempt such amendments from the constitutional re-quirments on grounds of necessity.

By adopting the proposed statutory rule of construction whichwould conform usage to popular expectations in the manner de-scribed, the legislature would largely eliminate the high potentialfor misinterpretation that led the author to characterize statutorycross references as the "loose cannon" of statutory construction.Moreover, it would be doing this at a price it can well afford topay.

118. Van Pelt v. Hilliard, 78 So. 693, 698 (Fla. 1918).119. See text supra, preceeding note 5.120. See note 8 supra.121. Interestingly, the three respondents to the author's questionnaire, see note 106

supra, reported that this issue had never been adjudicated in their states either.

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statutory cross references -- the 'loose cannon' of

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